MANNER OF FILING APPEAL BY COMMISSIONER

[Dr. Sanjiv Agarwal]

Manner of filing Appeal by Commissioner [Rule 109 of CGST Rules, 2017]

At times, the Department itself is not in agreement with the decision or order passed by the (initial) adjudicating authority or the appellate authority. The GST Law provides that in such cases, the Department can file what is commonly known as a “review application/appeal”.

The GST Law gives powers to the Commissioner to review any order passed by his subordinates acting either as an adjudicating authority, or the appellate authority or revisional authority. If the Commissioner is of the view that any order passed by such authorities are not legal and proper, he can direct any officer subordinate to him to apply to the competent authority. For example, if the order of adjudicating authority is reviewed, he can order his subordinate to file an appeal before the appellate authority. If the order of the appellate authority or the revisional authority is reviewed, he can direct his subordinate to file an appeal before the Tribunal. The grounds for appeal will be mentioned in his order. The review of the order and the consequent filing of appeal by the subordinate has to be done within a period of six months from the date of communication of the order. The resultant review application is required to be dealt with by the AA or the Tribunal as if it were an appeal made against the decision or order of the adjudicating authority and the statutory provisions relating to appeals shall, so far as may be, apply to such application.

As per Rule 109, application by Commissioner shall be in the following manner:

(a)   An application to the Appellate Authority under sub-section (2) of section 107 shall be made in Form GST APL-03, along with the relevant documents, either electronically or otherwise as may be notified by the Commissioner.

However, w.e.f. 04.08.223, vide Notification No. 38/2023-CT dated 04.08.2023, said application shall be filed electronically. It may be filed manually in Form GST-APL 03 alongwith relevant documents if only in the following two situations:

(i) the Commissioner has so notified, or

(ii) the same cannot be filed electronically due to non-availability of the decision or order to be appealed against on the common portal.

(b)   A certified copy of the decision or order appealed against shall be submitted within seven days of the filing the application under sub-rule (1) and an appeal number shall be generated by the Appellate Authority or an officer authorised by him in this behalf.

Rule 109 has since been substituted vide Notification No. 26/2022-Central Tax dated 26.12.2022 w.e.f. 26.12.2022 and further amended by Notification No. 38/2023-Central Tax dated 04.08.2023. Accordingly, following procedure is relevant for the application to the appellate authority.

• Application shall be filed ini form GST APL-08 alongwith documents electronically.
• Appeal may be filed manually if -

 (i) the Commissioner has so notified, or

(ii) the same cannot be filed electronically due to non-availability of the decision or order to be appealed against on the common portal.

• Where the decision or order appealed against is uploaded on the common portal, a final acknowledgment, indicating appeal number, shall be issued in FORM GST APL-02 by the Appellate Authority or an officer authorised by him in this behalf and the date of issue of the provisional acknowledgment shall be considered as the date of filing of appeal .
• Where the decision or order appealed against is not uploaded on the common portal, the appellant shall submit a self-certified copy of the said decision or order within a period of seven days from the date of filing of FORM GST APL-03 and a final acknowledgment, indicating appeal number, shall be issued in FORM GST APL-02 by the Appellate Authority or an officer authorised by him in this behalf, and the date of issue of the provisional acknowledgment shall be considered as the date of filing of appeal.
• Where the said self-certified copy of the decision or order is not submitted within a period of seven days from the date of filing of FORM GST APL-03, the date of submission of such copy shall be considered as the date of filing of appeal.